Landmark case on gender-neutral passports finally reaches UK’s highest court after activist’s 30-year fight
The Supreme Court will today hear its first-ever transgender civil rights case.
The case has been brought by equality campaigner Christie Elan-Cane against the government’s policy not to offer ‘X’ gender markers in British passports.
Elan-Cane, who is non-gendered and whose pronouns are per/per/perself, has campaigned for almost 30 years to achieve legal and social recognition.
The case before the Supreme Court this week was first heard by the High Court in 2018, and that judgment was appealed at the Court of Appeal in 2020. The case concerns HM Passport Office’s policy that only ‘M’ or ‘F’ gender markers are available in British passports.
Elan-Cane lost both legal fights, but both the High Court and the Court of Appeal ruled that per right to respect for private life is engaged under the European Convention on Human Rights.
Applicants for a UK passport must indicate whether they are male or female in a signed declaration. Elan-Cane argues that it is discriminatory for the UK Home Office to refuse to offer passports with an ‘X’ gender marker for people who are not male or female, such as non-binary people.
“Legitimate identity is a fundamental human right but non-gendered people are treated as though we have no rights,” said Elan-Cane in an emailed statement ahead of this week’s hearing.
Per continued: “The UK government refuses to acknowledge our existence as it continues to ignore our disenfranchisement while its systems and bureaucracy render us socially invisible.
“The case for ‘X’ Passports will now be heard before the UK Supreme Court where I hope finally to get justice on this matter.”
If the Supreme Court rules in Elan-Cane’s favour, it would open up ‘X’ gender markers to hundreds of thousands of people in the UK whose gender is not male or female.
The size of the UK’s trans population is not known, but in 2018 the government “tentatively” estimated it to be between 200,000 and 500,000 people. In the same year, half of the trans respondents to the National LGBT Survey were non-binary.
Some intersex people, who constitute around 1.7 per cent of the population, might also opt for an ‘X’ gender marker.
The Court of Appeal said that the Home Office policy requiring passport holders to choose an ‘M’ or ‘F’ gender marker is not unlawful, but emphasised that people whose gender identity is non-gendered or non-binary have a right to respect.
The court found that the right to respect for private life under Article 8 of the European Convention on Human Rights does include a right to respect for a person’s non-gendered identity, which marked the first time a British Court has recognised that Article 8 guarantees a right to respect for those who identify outside the binary belief of male and female.
In that March 2020 Court of Appeal judgment, Lady Justice King said: “Moreover, in my judgment it is obvious and indeed beyond argument that the facts of this case concern the Appellant’s private life and engage Article 8.
“There can be little more central to a citizen’s private life than gender, whatever that gender may or may not be.
“No-one has suggested (nor could they) that the Appellant has no right to live as a non-binary, or more particularly as a non-gendered person.
“Indeed, a gender identity chosen as it has been here, achieved or realised through successive episodes of major surgery and lived through decades of scepticism, indifference and sometimes hostility must be taken to be absolutely central to the person’s private life. It is the distinguishing feature of this Appellant’s private life.”
Gender-neutral passports are issued in more than a dozen countries
Australia, Austria, Canada, Denmark, Germany, Iceland, India, Malta, Netherlands, New Zealand, Nepal, Pakistan and Uruguay all provide an ‘X’ gender option in their passports.
‘X’ passports, also called gender-neutral passports, comply with UN International Civil Aviation Organisation accepted standards for Machine Readable Travel Documents, and the UK recognises ‘X’ gender markers on passports where issued in another country as a valid travel document at its border control points.
President Joe Biden announced last month that ‘X’ gender markers will be added on passports for use by trans and intersex Americans who want them, without the need for medical evidence, by the end of this year.
Eraldo d’Atri, senior associate at Clifford Chance, which is representing Elan-Cane at the Supreme Court, said ahead of the hearing that the case raises “important questions” about the “right to respect for individuals’ identity”.
“Specifically for those who identify as neither or not exclusively male or female. Access to ‘X’ passports is crucial for the protection of the human rights of this demographic, who are otherwise forced to use a passport which misrepresents their identity.
“The significance of this case is further highlighted by the recent announcement in the US by the secretary of state that a third non-gender specific option on US passports would be available. Clifford Chance is proud to be working with Christie and Blackstone Chambers to argue this case before the Supreme Court.”
The Supreme Court is hearing the case on Monday and Tuesday (12 and 13 July).